Factory Direct Pools Pty Ltd v Queensland Building Services Authority - [2013] QCAT 34

CITATION:

Factory Direct Pools Pty Ltd v Queensland Building Services Authority [2013] QCAT 34

PARTIES:	Factory Direct Pools Pty Ltd trading as Atlantic Pools (Applicant/Appellant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

GAR039-11

MATTER TYPE:

General administrative review matters

HEARING DATE:

12 July and 30 August 2012

HEARD AT:

Brisbane

DECISION OF:

Michelle Howard, Member

DELIVERED ON:

18 January 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Direction to Rectify No 35776 issued by the Queensland Building Services Authority to Factory Direct Pools Pty Ltd is set aside and in its place Factory Direct Pools Pty Ltd is directed to have the following defective building work rectified by a licensed contractor(s) within 28 days:

‘Installation of the fibreglass pool which has resulted in deflection outside of allowable tolerances of the southern wall resulting in possible damage to the pool shell.’

2. That any application for costs together with any supporting material and submissions be filed in the Tribunal and served on the other party by 4pm on 31 January 2012.

3. That any material and submissions in response be filed in the Tribunal and served on the other party by 4pm on 14 February 2013.

4. That any application for costs be heard on the papers without an oral hearing on the basis of the written material and submissions not before 18 February 2013.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW – review of Queensland Building Services Authority decision to issue direction to rectify – where swimming pool installed without a fully-piped sub-soil drainage system in non-compliance with the applicable Australian Standard – where construction defective irrespective of Australian Standard – where contractor submits drainage excluded by contract

Queensland Building Services Authority Act 1991, s 72, schedule 2
Domestic Building Contracts Act 2000, ss 7, 8, 8(4), 44, 93
Statutory Instruments Act 1992, s 7

Briginshaw v Briginshaw (1938) 60 CLR 336
R v His Honour Judge Miller and Builder’s Registration Board ex parte Graham Evans and Co (Qld) Pty Ltd [1987] 2 Qd R 446
Chicco v The Corporation of the City of Woodville (1990) Aust Torts Reporter 81-028
Riddell v Queensland Building Services Authority [2012] QCAT 226

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Factory Direct Pools Pty Ltd trading as Atlantic Pools was represented by Mr D Gardiner of Counsel instructed by Eatons Lawyers

RESPONDENT:

Queensland Building Services Authority was represented by Mr E Bird, In-house Legal Officer

REASONS FOR DECISION

On 3 February, 2011, the Queensland Building Services Authority (QBSA) issued Direction to Rectify and/or Complete Number 35776 to Factory Direct Pools Pty Ltd in respect of a pool at 31 Satinash Street, Narangba. The direction was to the effect that installation of the pool did not comply with the Australian Standard (AS) 1839:1994 in that the southern wall of the pool had deflected out in excess of reasonable tolerances, resulting in possible damage to the pool shell.
Factory Direct Pools applied for review of the QBSA decision.
The matter was heard over two days in July…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] QCAT 34
Decision Date: 18 January 2013

CaseChat Overview and Summary

Factory Direct Pools Pty Ltd sought a review of a decision made by the Queensland Building Services Authority (QBSA) to issue a direction to rectify in relation to a swimming pool installed at a residential property. The central issue was whether the pool was installed in compliance with the relevant Australian Standard, specifically regarding the installation of a fully-piped sub-soil drainage system. The QBSA found that the pool was installed in a manner that did not comply with the standard and was defective regardless of the standard, issuing a direction to rectify. The respondent, Factory Direct Pools Pty Ltd, contended that the installation of the pool was defective but argued that the drainage system was excluded by the contract between the parties.

The Court considered whether the QBSA had exercised its powers reasonably and lawfully in issuing the direction to rectify. It examined whether the installation of the pool was indeed defective and whether the direction to rectify was appropriate. The Court found that while the pool was defective, the QBSA had not properly exercised its powers in issuing the direction. The installation was defective in that the southern wall of the pool exhibited deflection outside of allowable tolerances, which could potentially cause damage to the pool shell. However, the Court determined that the QBSA's decision to issue the direction to rectify was not in accordance with the applicable legislative framework. The Court set aside the direction to rectify and directed Factory Direct Pools Pty Ltd to rectify the defective work within 28 days.

The Court also addressed the procedural aspects of the case, setting timelines for the filing and serving of costs applications and responses, and scheduling a hearing for the costs application without an oral hearing. This meticulous approach to procedural fairness ensured that both parties were given a fair opportunity to present their arguments regarding costs.

Orders

Orders of the court

‘Installation of the fibreglass pool which has resulted in deflection outside of allowable tolerances of the southern wall resulting in possible damage to the pool shell.’

2. That any application for costs together with any supporting material and submissions be filed in the Tribunal and served on the other party by 4pm on 31 January 2012.

3. That any material and submissions in response be filed in the Tribunal and served on the other party by 4pm on 14 February 2013.

4. That any application for costs be heard on the papers without an oral hearing on the basis of the written material and submissions not before 18 February 2013.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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